What is a Will?
“Everyone has a Will. You either draft one yourself or the state will draft one for you using the rules of intestate succession”…Shapiro
To carry out the final wishes of the person who drew up the will and to dispose of his / her assets accordingly.
Parties to a will:
A male person for whom a will is drawn up.
A female person for whom a will is drawn up.
A person or institution nominated to wind up the estate.
Master of the High Court:
The Master oversees the administration of deceased estates. The Master acts as the upper guardian of all minors and estates under curatorship.
A person or institution appointed to administer the assets in a trust on behalf of a beneficiary/ies.
A person who signs the will as confirmation that the testator and/or testatrix have signed the will with sound mind and that s/he is not acting under duress.
A person who cares for person/s (often minors) or property.
A person or institution that benefits from a will. No formal requirements are set about who qualifies as heir but please note:
- References to “a child” includes adopted children
- Children born from more than one marriage – it is important to indicate when referring to “our children” whether children from a previous marriage of the testator or testatrix are included.
- The fact that a person had been born out of wedlock is not taken into consideration in the determination of his relationship to the testator or to that of another person for the purposes of the will.
One of the most important documents for any person is that of a will. Responsible financial planning is about providing for the financial needs of people you love – both during and beyond your lifespan.
A will is an instrument which gives you the power to decide and choose how to distribute your assets to your loved ones after your death. By drawing up a will you are ensuring that the distribution of your assets is done per your wishes.
South African law accepts the principle that a testator can bequeath his/her assets to whomever he or she pleases.
Exceptions to this rule include:
- Minor children have a right to maintenance and education.
- The surviving spouse has a claim for reasonable maintenance until death or re-marriage.
- If married out of community of property with accrual, there may be an accrual claim.
- Trustees of a pension fund have the authority to decide which of the testator’s dependants are to receive benefits. This super cedes any beneficiary nomination.
A will acts as a document which clearly states who will inherit, when they will inherit and any conditions that must be met for them to inherit your assets. It may be typed or hand written. Two or more persons can make a joint will and they do not need to be married. For the purposes of interpretation, these wills are treated as individual wills.
A death in the family is, of course, a time of sadness. The burden will be easier to bear if you have left clear instructions as to your wishes, if there are enough funds to meet immediate expenses and professional help is at hand. This is called ‘estate planning’.
At death, the Master of the High court will rule on the validity of your will.
If the will is valid the court will instruct your nominated executor to carry out the terms of your will per your wishes. The executor is a person chosen and nominated by you in the will to supervise the distribution of your assets.
Should you die without leaving a valid will the Master of the High court does not have your financial blueprint to follow and therefore has no way of knowing how to distribute your assets.
Your assets will be divided and distributed per the rules and Laws of Intestate Succession per the Intestate Succession Act, Act 81 of 1987 by appointing an executor to administer your estate. This is termed as ‘dying intestate’.
By ‘dying intestate’ you lose the ability to direct the distribution of your estate. Unfortunately, the state’s decision may not conform to your wishes or what is best for the people closest and dearest to you. This can cause problems and misunderstandings and could even result in your assets being tied up for months or even years before being allocated accordingly.
If a person dies without a will, whether invalid or outdated, the following problems may arise:
- An executor must be appointed -a costly and time-consuming process.
- Intestate succession can be impractical and takes place according to a fixed pattern.
- Wishes expressed during lifetime cannot be executed.
- Inconvenience and unpleasant situations regarding heirs could arise.
- Assets cannot be distributed until all the rules regarding intestate succession have been adhered to.
- The wrong people may inherit.
The Will Explained:
Any person 16 years or older is free to draw up a will to determine how his/her assets and estate should be distributed.
The benefits of having a valid will in place are:
- Items with sentimental value can be passed on to those that most appreciate them.
- You can include people in your will that would not normally inherit from you per the laws of Intestate Succession.
- You can exclude people from your will that would have normally received an equal share of the inheritance, per the laws of Intestate Succession.
- You can allocate greater or fewer shares of your estate to different family members as opposed to having to divide your estate equally amongst family members.
- You can choose a personal representative whom you trust i.e. nominated executor, to carry out your wishes and administer your estate.
- You can select guardian(s) for minor children.
- You can make provision for the creation of a trust/ss in your will called ‘testamentary trusts’ to set aside assets to care for loved ones and minor children.
- A will streamlines the passing of assets and reduces the cost and additional expenses when trying to wind up your estate.
The consequences of not having a valid will are:
- The court will decide where your assets will go based on the laws of intestate.
- Your heirs will split up your assets as they deem fit without what you may regard as fair distribution.
- If you have minor children the court will appoint a guardian, one that may be different from whom you might choose to look after your children.
- Minor children’s inheritance will be placed at the Guardians Fund, which is not easily accessible.
You may ask whether you can draw up your own will without seeking professional advice and if you do so will it be valid?
The law does not prevent a lay person from drawing up his own will but there are many legal formalities which must be complied with for the will to be valid.
Often these are overlooked by the inexperienced will draftsman with the result that the will is rendered invalid, a situation which may only be capable of rectification by a costly application to the High Court. In addition, there are many issues which may need to be dealt with in a person’s will which might not be considered unless professional advice is sought.
Understanding the will:
There are two types of wills, namely:
- A simple Will.
- A complex will.
The Simple will:
In most cases where a person has less than R3.5 million in assets and therefore not subject to estate duty, a simple will is required.
The simple will can be used in the following examples:
- John and Mary, both in their late 30’s, own a home, two cars and some savings. Their net worth totals R2.1 million. They have one child, Jason aged 11. They prepare a will leaving all his or her property to the other. If they die at the same time Jason is to receive all their property. John and Mary agree that John’s sister will care for Jason until he turns 21 using the money that has been placed in a Trust.
- Harry, a widower with three grown children, owns a property with a net worth of R1.3 million. He creates a Will leaving all his property equally between the surviving children.
- Barbara is a single mother with two teenage children. Barbara’s Will leaves all her property equally to her children. Because she does not want her ex-husband managing money left to her children if she dies, she uses her Will to place the property in a trust until the children turn 21.
There are a few considerations before completing a will; you should ensure that you have given thought to the following:
- List all your significant assets such as property and cars etc.
- Decide who will inherit your assets.
- Choose an executor to handle your estate.
- Choose a guardian for your children, if they are minor.
- Choose someone to manage your children’s property, if they are minor.